deep roots in Zvishavane, no passport, and will gladly report to the nearest police station should the court deem it necessary. The spectre of delay in the compilation of records and the setting- down of criminal appeals is pressed upon the court with reference to Fawcett v S HH 64-06, S v Marikano & Ano [2021] ZWHHC 59 and S v Mloyi & Ano [2020] ZWHHC 123.

The State takes an altogether dimmer view. It accepts that the sentence of ten years “induces a measure of shock” and may well be reduced on appeal, but reminds the court that— even if the conviction for attempted murder were to be set aside—the applicant cannot escape a conviction for aggravated assault under s 89 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In that event the presumptive penalty is two years, and, crucially, the suspended two-year term from CRB GWR 122/21 will inevitably be revived. On the State’s arithmetic an effective custodial sentence remains unavoidable. Reference is made to the principle that prospects of success must be realistic rather than speculative—see S v Melrose 1984 (2) ZLR 217 (S) and Kurauone Chitoro v S HMA 22/17; that risk of abscondment is heightened where the appellant faces a near-certain return to prison—see Nhlanhla Moyo v S HH 827/20; and that the interests of justice are not served by releasing a recidivist whose very liberty was recently conditioned on good behaviour that has now been spectacularly breached—see S v Admore Matevere HMA 22/20.

I have considered the able arguments from both sides, mindful that the governing principles are no longer in dispute. Since Dzawo this court has reiterated that four factors predominate: (i) the prospects of success on appeal; (ii) the likelihood of abscondment; (iii) the potential delay before the appeal is heard; and (iv) the prejudice to the applicant if he is incarcerated pending that hearing. Against that template each case must be balanced with anxious scrutiny. Section 123 of the Criminal Procedure and Evidence Act [Chapter 9:07] vests the court with a discretion—one that must be exercised judicially, that is to say, upon a sober appreciation of all the circumstantial colouring of the matter.

I begin with prospects of success. The record shows a calculated blow delivered with severe force to the back of the head of a police officer who was a mere three metres away. The applicant’s assertion in cross-examination that he “wanted to kill” the complainant was later retracted as an inadvertence born of confusion, yet the unequivocal concession stands starkly alongside the objective circumstances: a heavy stone, a vulnerable target area, and the absence of any immediate threat to the applicant. Those facts find resonance with the remarks of GUBBAY CJ in S v Mugwanda that where the chosen weapon and the part of the body aimed at “betoken a plain risk of fatal consequences”, foresight of death may readily be inferred. The

applicant’s reliance on Nyathi and Mairosi is distinguishable; in those matters the blows were either spontaneous or inflicted with instruments of lesser lethality. Here the degree of force and the anatomical situs of impact speak for themselves. Even were a superior court minded to disturb the conviction, the State is correct that an aggravated assault conviction would loom large. In that scenario the presumptive custodial sentence, augmented by the activation of the suspended two-year term, would still consign the applicant to prison.

Turning to the risk of abscondment, counsel urged that the applicant’s youth, familial ties, and lack of a passport constitute a sufficient anchor. That submission rings hollow against the backdrop of the certain prospect of further incarceration. Our courts have repeatedly emphasised that the real incentive to abscond arises not from the length of sentence alone but from the certainty of imprisonment—see S v Dzvairo HH 98-04 and, in the South African context, S v Hudson 1980 (4) SA 145 (D) where DIDCOTT J memorably observed that an appellant who faces a fresh spell behind bars “is sorely tempted to take flight rather than chance his arm”. Against that legal reality the bland proffer of monthly reporting conditions is no talisman.

On delay, it is certainly true that criminal appeals can languish, and the constitutional right to trial within a reasonable time does not evaporate upon conviction. But recent administrative reforms within this division have markedly improved the dispatch of appeal records. The present criminal roll shows that appeals filed in February of this year are already set down for argument in June. That projection aligns with the dictum in the South African decision of S v Scott-Crossley 2008 (1) SACR 223 (SCA) that where the hearing of an appeal is “imminent, rather than remote”, the prejudice inherent in continued custody is correspondingly diminished. I am satisfied that the applicant will receive his day before a superior bench within a timeframe that does not imperil the fairness of the process.

Prejudice to the applicant, finally, must be balanced against the countervailing right of society to be protected from demonstrably violent offenders. This was underscored in S v Biti 2002 (1) ZLR 115 (H): liberty is a fundamental value, but it cannot eclipse the need to preserve public confidence in the administration of justice, the more so where a peace officer has borne the brunt of gratuitous violence. Comparable considerations animated the Constitutional Court of South Africa in S v Dlamini; S v Dladla; S v Joubert; S v Schietekat 2000 (2) SACR 1 (CC) where it was held that bail jurisprudence must weigh both individual freedom and the security of the community.

Bringing these strands together I am left with no sustainable reason to disturb the settled approach of this court that bail is an exceptional remedy after conviction. The applicant’s prospects on appeal are, at best, tepid; the certainty of a further custodial term supplies a powerful inducement to flee; administrative delays have eased to the point where no real prejudice looms; and the community’s interest in seeing violent recidivists removed from circulation is manifest.

In the premises the application for bail pending appeal is dismissed.

MAMBARA J…………………………………………….

Nyabawa Legal practice, legal practitioners for the appellant

National Prosecuting Authority, legal practitioners for the respondent